Excessive force by police extremely hard to prove

A prominent New Hampshire attorney who specializes in police misconduct cases said he believes Seabrook police are guilty of using excessive force in a video released this week, but it won't necessarily be easy to prove in court.

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By Nick B. Reid

seacoastonline.com

By Nick B. Reid

Posted Jan. 12, 2014 at 2:00 AM

By Nick B. Reid

Posted Jan. 12, 2014 at 2:00 AM

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A prominent New Hampshire attorney who specializes in police misconduct cases said he believes Seabrook police are guilty of using excessive force in a video released this week, but it won't necessarily be easy to prove in court.

Richard Lehmann of the Concord-based firm Douglas, Leonard & Garvey, P.C., is a former county attorney in New Hampshire. Since leaving that office, he has represented a Boscawen man who sued police in that town for using excessive force in 2011, as well as a girl who claimed the New London police chief pressured her to pose for nude photos in exchange for charges being dropped against her last year.

His reaction to the video was simple: "It's excessive force."

But he said that's not an easy point to make in the courtroom, given that people are generally predisposed to trust police officers.

"It's always hard to prove because police go into court — for better or for worse — with credibility, and the public is inclined to believe them unless there's a very clear reason not to," he said.

Lehmann said he'd be interested to hear what the officers will say happened before the events depicted in a YouTube video that has received more than 150,000 views in the week of its release. Three officers were suspended after the video's release and the state attorney general's office is investigating their conduct. In the video, one officer throws a seemingly defenseless suspect head first into a wall, then another pepper sprays the subject while he's on the ground.

Scott Gleason, an attorney based out of Haverhill, Mass., who is representing the alleged victim, said it's a rarity to have such a video to accompany police reports. He said the video proves the reports filed in this case include "blatant and repeated misrepresentation of fact."

"That stuff just doesn't happen," he said. "It's an absolute rarity to literally be looking at a video of what I believe to be clear and unmistakable criminal behavior and then to have somebody — anybody, a police officer or otherwise — writing a report about the event that just transpired and have it be so noticeably false."

New Hampshire Assistant Attorney General Jane Young said her department is investigating the incident to see if there's any violation of law. "It's not limited to any specific crime," she said. "We're doing a comprehensive investigation."

And if the state were to decide to press charges against any officers involved, it's not too late, she said, despite the fact that the video is more than four years old.

While the statute of limitations for any misdemeanor, such as simple assault, would have passed after one year, the law provides up to six years for any felony prosecution, such as second-degree assault, which occurs when a person "knowingly or recklessly causes serious bodily injury to another."

But in the case of a public servant, the law allows even more time. For any offense based upon misconduct in office by a public servant, a prosecution can commence during any period of time the defendant is in public office or within two years thereafter, according to state law.

On the federal side, U.S. Attorney John Kacavas said his office could determine whether the incident involved any civil rights violations.

Lehmann said in his experience, "It's so rare that police officers get prosecuted for any on-duty conduct."

He said most police are upstanding, but in those cases when they aren't they can still sometimes get away with it.

"In some of these cases it's pretty clear the authorities are giving the police perhaps too much benefit of the doubt," he said.

But that doesn't mean Gleason won't try to hold accountable the officers, whose behavior he described as "beyond despicable."

"Make no mistake about it: I don't see any other way than to prosecute them in any manner and means possible," he said.